Disappeared News

Monday, December 23, 2013

Castle & Cooke’s Koa Ridge housing development, opposed by the Sierra Club and others because it would be built on prime agricultural land, has been stopped for the moment by a state Supreme Court decision filed at 11:01 today. The decision is posted at this link (pdf) on the Environment Hawaii website.

The decision has gone back and forth as it advanced from the Circuit Court of the First Circuit to the Intermediate Court of Appeals and finally to the Supreme Court.

In a nutshell, the Supreme Court affirmed that since the Senate rejected the Governor’s appointment of Duane Kanuha to a second term on the Land Use Commission, holding that he was unqualified for the appointment, his vote to approve the reclassification of agricultural land was invalid, and so the Land Use Commission did not have the required six votes to approve the reclassification of agricultural land for urban use.

The language of the decision explains it best. The decision is 56 pages long and meticulously reasoned, but a few snips cover most of the ground:

On April 26, 2010, the Senate rejected Duane Kanuha’s (Kanuha) nomination for a second term as a commissioner on the Respondent/Appellee-Appellant state Land Use Commission (LUC), based in part on the finding that Kanuha lacked the requisite knowledge and experience to qualify as the designated member with expertise on Hawaiian land usage. More than four months after the Senate’s rejection, Kanuha continued to participate in the LUC’s consideration of a significant development project involving the reclassification of agricultural land for urban use.

[p. 2]

…the ICA gravely erred in concluding that Kanuha was a valid holdover member when he participated and voted on the Reclassification Petition. The Senate’s rejection of Kanuha’s nomination for a second term disqualified Kanuha from serving as a holdover member under HRS §26-34(b). Kanuha’s actions taken with respect to the Reclassification Petition are therefore invalid.…Because Kanuha was disqualified from participating in the Reclassification Petition proceedings following the Senate’s rejection, the LUC lacked the six affirmative votes required to approve the Reclassification Petition. Accordingly, the ICA’s judgment is reversed, and the circuit court’s judgment is affirmed.

[p. 55]

The decision notes that Kanuha’s nomination was rejected by the Senate over concern that he lacked the required experience and knowledge in traditional Hawaiian land usage and cultural practices. Having rejected his nomination, the next issue was whether he could continue as a holdover commissioner. The Court determined that the legislative history of the holdover provision demonstrated that the legislature intended to require a holdover to be amember

who is not disqualified for membership under subsection (a).” A member whose nomination for a second term has been rejected by the Senate is disqualified from serving another term and therefore “disqualified for membership under subsection (a).

[p. 30]

Allowing a disqualified commissioner to participate in the LUC’s consideration of a petition has the effect of undermining the Senate’s advice and consent power and undermining the laws the legislature and the LUC itself specifically put in place on behalf of the public.

[p. 46]

What next? Castle & Cooke will not surrender easily.

Kudos to the Sierra Club for this successful defense of Hawaii’s shrinking inventory of prime agricultural land, as well as for potentially keeping a new fleet of cars from being added to Oahu’s already overloaded highways.